A Leap Forward in the Fight Against Oregon Distracted Driving

An article published this week in the New York Times outlines what many of us have long suspected: distracted driving, the paper writes, “by just about any measure, appears to be getting worse. Americans confess in surveys that they are still texting while driving, as well as using Facebook and Snapchat and taking selfies. Road fatalities, which had fallen for years, are now rising sharply, up roughly 8 percent in 2015 over the previous year, according to preliminary estimates.”

It quotes the head of the National Highway Traffic Safety Administration saying “radical change requires radical ideas,” and then goes on to offer some striking examples. The most unique, proposed by legislators in New York “is to give police officers a new device that is the digital equivalent of a Breathalyzer – a roadside test called the Textalyzer.”

As the Times outlines, an officer would collect phones from drivers and passengers and use the device “to tap into (each phone’s) operating system to check for recent activity.” The answers provided by the machine would determine not only whether the driver had been texting but also whether he or she had violated New York’s hands-free laws (the oldest in the nation) in any other way. “Failure to hand over a phone could lead to the suspension of a driver’s license, similar to the consequences for refusing a Breathalyzer,” the paper reports.

The idea runs up against a 2014 Supreme Court ruling prohibiting police from searching a cellphone without a warrant, but the legislation’s sponsors “say they have based the Textalyzer concept on the same ‘implied consent’ legal theory that allows police to use the Breathalyzer: When drivers obtain a license, they are consenting in advance to a Breathalyzer.” Sadly, the key thing missing from the Times article is a sense of how close to the commercial market the technology that would enable the Textalyzer is.

As a Portland distracted driving victims’ attorney I understand the privacy concerns that a device like the Textalyzer raises. At a minimum, manufacturers must allay concerns that a Textalyzer would also allow police (or anyone else) to read emails, a phone’s address book and other private information. One has the sense, however, that the software issues involved are far from insoluable, and that once it was in wide use the Textalyzer night offer a degree of deterrence that current distracted driving laws simply lack. It is a technological question that will deserve close scrutiny in the months and years to come.